Bedford v Forward RE Pty Ltd t/a Ray White Epping

DETERMINATION OF APPEAL PANEL
CITATION:	Bedford v Forward RE Pty Ltd t/a Ray White Epping [2023] NSWPICMP 37
APPELLANT:	Claudia Bedford
RESPONDENT:	Forward RE Pty Ltd t/a Ray White Epping
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	6 February 2023
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against assessments for three of the categories in the Psychiatric Impairment Rating Scale (PIRS); whether Medical Assessor erred in not finding a higher classification regarding each; Held – appellant unable to demonstrate more than a difference of opinion about which reasonable minds might differ; Ferguson v State of New South Wales applied; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 September 2022 Claudia Bedford, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Douglas Andrews, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 7 September 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes - set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 10 August 2022 the delegate of the President referred this matter to the MA for an assessment of whole person impairment caused by psychological injury which occurred on a deemed date of 27 July 2021, which we assume was the date of claim, as Ms Bedford actually ceased work with the respondent on 3 March 2020.
Ms Bedford suffered a psychological injury whilst working as a real estate agent after she refused to falsify a statutory declaration and her employer then bullied, harassed, belittled and demoralised her. Ms Bedford was born in Iran and migrated to Australia when she was two years old. She was working in real estate through her career until she ceased working for the respondent.
The MA assessed WPI at 7%.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant requested a re-examination by a MA who was a member of the Appeal Panel, but the request is denied as no demonstrable error was found..

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant submitted that the MA had fallen into error in his assessment of three of the Psychiatric Impairment Rating Scale (PIRS) categories, namely employability, self care and personal hygiene, and social functioning.

THE MAC

The MA said with regard to Ms Bedford’s work history:[1]
“For the last 12 months, she has worked as a café assistant for Compass Group. Initially, this was in an aged-care facility, and now it is at Gosford Hospital. She works between 20- 24 hours a week, although some weeks she is less well and might drop down to 15-16 hours. She tends to keep to herself and has been criticised in a performance review for not being a team player. She has unsuccessfully tried to increase her hours, failing because of increased anxiety.”
[1] Appeal papers page 23.
As to Ms Bedford’s social activities and activities of daily living, the MA recorded:[2]
“Ms Bedford has lived at Terrigal on the Central Coast since July 2022, where she moved to be nearer her ex-husband. She has 16 and 18-year-old daughters who live part-time with her and part-time with her ex-husband. The younger girl is in high school, and the older is studying at the University of Newcastle.”
[2] Appeal papers page 23.
The MA noted that Ms Bedford did necessary housework to maintain a reasonable standard which had been instilled in her from childhood. The MA said:[3]
“She often misses meals and has lost weight but will prepare special meals when her daughters are at home. They enjoy Middle Eastern food, which Ms Bedford says takes time and care to prepare.
She neglects hygiene, showering about once a week without prompting and encouragement. She doesn’t wear make-up or care too much about her appearance. She wears a uniform at work, saving her worry about what to wear.
She gets home at about 3 PM on workdays and gets into pyjamas.”
[3] Appeal papers page 23.
The MA noted that she no longer participated in dance and theatre although she had a role to play at an amateur production over five performances in May 2021 which she completed. She attended rehearsals twice a week, and performed the lead role.
The MA said:[4]
“She doesn’t keep in touch with friends although she has made a new friend at Terrigal, her neighbour. They visit each other’s homes but don’t go to social venues together.
…
She remains close to her daughters, ex-husband, father and one friend. She noted that her relationship with her daughters was ‘not like they used to be” and that she tries to encourage them to be independent. She described her ex-husband as a “really good friend, a massive support’.”
[4] Appeal papers page 24.
The MA found on video link examination that Ms Bedford was slightly dishevelled, wearing glasses and dressed in casual attire with her hair pulled up.
The MA noted that the interview lasted for 70 minutes.
The MA diagnosed a persistent depressive disorder with an ongoing major depressive episode and anxious distress. He thought that Ms Bedford met the criteria for a major depressive episode and probably had since leaving employment with the respondent.
He found no inconsistencies in Ms Bedford’s presentation.
At 8[b] in answer to a templated question about maximum medical improvement, he said:[5]
“Yes. Ms Bedford has been unwell for more than two years. She takes appropriate medication and, earlier in the course of her illness, had support from a psychologist and psychiatrist. She hasn’t continued with psychological or psychiatric care, saying she found it unhelpful. Her symptoms are entrenched; her condition and associated impairment will not change substantially over the next 12 months, with or without further medical treatment.”
[5] Appeal papers page 24.
At [10c] the MA reviewed the relevant material that was before him. In doing so he reviewed a report dated 9 April 2021 from Dr Christopher Canaris, consultant psychiatrist, the medico-legal expert retained for Ms Bedford. He also reviewed a report of Dr Graham George, psychiatrist, of 7 July 2020, Dr George being retained by the respondent.
He noted also a report of the treating psychiatrist, Dr Hug of 25 November 2020.
The advertisement for the play Ms Bedford appeared in (which was performed by the Newcastle Theatre Company, opening on 12 May 2021 for four days), and a webpage from the Talent Short List which contained photos of Ms Bedford, stating that she was available for booking, was noted.
With regard to Dr Canaris’s assessment for self care and personal hygiene, the MA said[6]:
“Dr Canaris had found moderate impairment in self-care and personal hygiene, whereas I found it mild. Dr Canaris wrote:
‘She lost appetite and ‘some days I just have one meal a day... I only eat because I have to” and she has lost significant amounts of weight. She no longer cares for her appearance or hygiene and would shower ‘once a week – even then it’s a chore’ and whereas she ‘used to wear make-up’ but now ‘couldn’t be bothered’.
Ms Bedford lives independently, sharing her home with her daughters part-time. She does housework, including shopping, cleaning and meal preparation. She is less attentive to hygiene, showering only once a week, and often misses meals. She can live independently, without support, although with a lower standard of self-care than she maintained before her injury.”
[6] Appeal papers page 26.
In his rating form the MA found that Ms Bedford satisfied a class 2 impairment. He said:[7]
“Ms Bedford lives independently, with her daughters staying with her part-time. She maintains a reasonable standard of housework, attending to cleaning, shopping and meal preparation. She neglects hygiene, showering only once a week without prompting from others. Her appetite is reduced, and she misses meals; consequently, she has lost weight.”
[7] Appeal papers page 29.
As to social functioning, the MA also assessed a class 2 impairment. He said:[8]
“She has maintained good relationships with her daughters, father, and ex-husband; she has made one new friend at Terrigal. She has disengaged from her previous friendship group and has no communication with them.”
[8] Appeal papers page 29.
As to employability the MA found a class 3 impairment. He said:[9]
“She works in a less demanding and responsible role as a food and beverage café assistant, usually working 20-24 hours a week. Sometimes, she copes less well and reduces her hours slightly.”
[9] Appeal papers page 29.

Appellant’s submissions

The appellant submitted that the MA had fallen into error in his assessment of three of the PIRS categories, namely employability, self care and personal hygiene and social functioning. We propose to deal with each category in the order it appears in the Guides.[10]
[10] See Chapter 11, Tables 11.1- 11.6, Guides pages 56-57.

Self care and personal hygiene

Ms Bedford submitted that the class 2 assessed “did not accurately record” her level of function. Ms Bedford disputed that she could live “independently”. She stated that the MA had noted that she had moved to Terrigal to be nearer her ex-husband and the MA also noted that her ex-husband was a “massive support”.
Ms Bedford acknowledged that the MA was aware that Ms Bedford lived with her two children aged 16 and 18. However, it was argued that he had fallen into error, as he did not “clarify” the nature of the support given by her daughters and her ex-husband. The balance of the history recorded by the MA, it was submitted, showed that she could not live independently and that she required regular support.
As to meal preparation Ms Bedford submitted that the MA’s report “was not entirely accurate” in that whilst the MA noted that “Ms Bedford would prepare special meals when her daughters are home” that was a different matter entirely from her being able to undertake regular meal preparation. Ms Bedford again acknowledged that the MA had noted that
Ms Bedford often missed meals and lost weight, and that she neglected her hygiene, showering about once a week.
We were also referred to the MA’s report that Ms Bedford would get home at 3pm on workdays and get into her pyjamas. These matters were more appropriate to a class 3 categorisation, it was submitted.
Ms Bedford said that her not showering regularly was behaviour that fell well below a minimum level of hygiene and that the “absence of a history with respect to her involvement with her daughters or husband” regarding hygiene and nutrition itself constituted a demonstrable error.
The appellant submitted that she was not overweight and that therefore a reduction of her body weight “which may now be at or below a health level” was important. These matters would also fall short of the minimum level of nutrition that would enable a person to live independently and therefore the class 2 categorisation was erroneous.

Social functioning

Ms Bedford submitted that she ought to have been classified in this category as Class 3.
It was again acknowledged that the MA was aware that Ms Bedford did not keep in touch with her friends. However, it was argued that because he did not record a history of any pre-injury friendships that had been maintained, it followed that Ms Bedford had not maintained any. If that were the case, the argument ran, then a Class 2 value could not apply, as it referred to a “loss of some friendships”.
With regard to her move to Terrigal Ms Bedford criticised the description of her neighbour as being a “new friend”. Ms Bedford noted the MA’s findings that they visited each other’s home but they did not go to social venues together. She submitted that it was “a stretch” therefore to call this person a “new friend” that justified a class 2 categorisation. It would be more accurate to conclude that she had no friendships both pre-injury and post injury. Subject to the concession that there was a relationship with the neighbour, Ms Bedford submitted that she had been unable to form a long term relationship either with a new friend or a romantic relationship.
There was a strain in the existing personal relationships noted by the MA and accordingly a class 3 assessment was more appropriate.

Employability

Ms Bedford alleged that the MA made a factual error by not obtaining a complete and accurate history regarding employment. It was alleged that he failed to record all details of Ms Bedford’s employment history after she had worked for the respondent.
The MA recorded only one employer but the Application to Resolve a Dispute (ARD) itself demonstrated that there were “multiple attempts to return to work with a range of employers”.
Ms Bedford submitted that all her attempts to return to work had ultimately been unsuccessful. Across multiple post injury employers she said she had not been able to perform consistently her rostered hours. She had multiple absences from her employment until her capacity for work had been downgraded. Her post-injury employment performance had not been satisfactory and she was unable to maintain employment. This had not been recorded by the MA.
Ms Bedford also submitted that the criticism made of her in a performance review for not being a team player, together with the fact that she first worked for 20 - 24 hours per week although some weeks she dropped down to 15 or 16 hours, was indicative that she could not sustain employment as defined within class 3 of the Guides and that therefore that categorisation was contrary to the totality of the evidence, including matters not considered by the MA.

Respondent’s submissions

The respondent replied to the criticisms for each category.

Self care and personal hygiene

The respondent took us to the definitions within chapter 11 of the guides for class 2 and class 3.
We were referred to Jenkins v Ambulance Service of NSW[11]. The MA had reviewed the documents including the opinion of Dr Canaris who noted a class 3 value. The respondent referred to the reasons given by the MA and submitted that he applied his clinical judgment. We were referred to Glenn William Parker v Select Civil Pty Limited[12]. The class 2 rating was consistent with the evidence it was submitted and the appellant was simply raising a difference of opinion.
[11] [2015] NSWSC 633.
[12] [2018] NSWSC 140.
The respondent referred to Mahenthirarasa v State Rail Authority of New South Wales & Ors[13].
[13] [2007] NSWSC 22.

Social functioning

The respondent set out the respective guidelines for class 2 and class 3 ratings and referred again to the authorities referred to above.
The respondent also referred to the reasons given by the MA in his MAC, particularly when dealing with social activities. The respondent submitted that the rating was consistent with that evidence.

Employability

The respondent again set out the appropriate guidelines for a class 3 evaluation of this category. We were referred to Marina Pitsonis v Registrar Workers Compensation Commission & Anor[14] regarding facts that were not before the MA.

Discussion
[14] [2008] NSW CA 88.

The Psychiatric Impairment Rating Scale

The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[15] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[15] Guides 55 .
The MA is required to classify each category, and to apply the resulting scores as set out in Chapter 11[16].
[16] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[17] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[17] [2017] NSWSC 887.

In Glenn William Parker v Select Civil Pty Ltd,[18] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[18] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
“a.     if the categorisation was glaringly improbable;
b.     if it could be demonstrated that the AMS was unaware of significant factual matters;
c.     if a clear misunderstanding could be demonstrated, or
d.     if an unsupportable reasoning process could be made out.”
It can be seen that the ultimate test for an appellant when challenging the findings of an MA is to establish that his/her grounds are more than a disagreement about which reasonable minds might differ. The determination of this challenge is informed by the matters we have just alluded to by Campbell J in Ferguson. We now turn to the individual categories under dispute.

Self care and personal hygiene

Table 11.1 provides the following descriptors for class 2:
“Mild impairment: able to live independently; look after herself adequately;
although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.”
Class 3 is described as follows:
“Moderate impairment: can’t live independently without regular support.
Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2 - 3 times per week to ensure minimum level of hygiene and nutrition.”
The MA assessed a class 2 value, saying in the PIRS Table:
“Ms Bedford lives independently, with her daughters staying with her part-time. She maintains a reasonable standard of housework, attending to cleaning, shopping and meal preparation. She neglects hygiene, showering only once a week without prompting from others. Her appetite is reduced, and she misses meals; consequently, she has lost weight.”
Ms Bedford challenged the class 2 assessment by the MA.
Ms Bedford’s submissions suffered from a singular disadvantage in this category, and indeed with regard to all the categories she has disputed. Her submissions acknowledged that the MA had been aware of the evidence Ms Bedford relied on. Thus, it cannot be said that the MA was unaware of significant factual matters. The submission that he was under a duty to “clarify” the nature of the support given by Ms Bedford’s daughters and her ex-husband accordingly has to satisfy the test that to reasonable minds the class 2 assessment was either improbable, or made because there was a clear misunderstanding of the evidence by the MA, or that his reasoning process was unsupportable.
We fail to see what needed to be “clarified” about the nature of the support identified by the MA. Ms Bedford’s support from her ex-husband was described as “massive”, from which it may be inferred that he was of significant support to her, and the MA acknowledged that whilst there was some shift in the nature of her relationship with her daughters, as she wanted them to be independent, she remained close to them. We were not referred to any evidence that may have indicated that the MA had misunderstood Ms Bedford, or that his estimate was improbable. His reasoning was clearly explained.
As to meal preparation Ms Bedford submitted that the MA’s report “was not entirely accurate” in that whilst the MA noted that “Ms Bedford would prepare special meals when her daughters are home” that was a different matter entirely from her being able to undertake regular meal preparation. Ms Bedford again acknowledged that the MA had noted that
Ms Bedford often missed meals and lost weight, and that she neglected her hygiene, showering about once a week.
The purpose of the assessment is to evaluate the behavioural consequences of the psychiatric disorder within the six categories of the table. The relevant factor for an MA is whether a claimant is able to perform activities within the various categories, rather than what a claimant’s motivation was for doing any particular activity. The MA was aware that
[19] Appeal papers page 40/41.
Ms Bedford missed meals often, and that she had lost weight. However, he emphasised that she would cook “when her daughters are at home”. There was no dispute that she shared custody with her ex husband, and her statement made it clear that her daughters were under her care when Ms Bedford described the difficulties she had in getting time off when she thought each of them had Covid in early 2020.[19] The MA noted that Ms Bedford would prepare special meals for them which took time and care to prepare, which demonstrated that she was capable of, and did, prepare her own meals from time to time. Far from being unable to live independently, Ms Bedford was caring for her daughters by cooking for them and we would assume, looking after the usual needs of teenage girls living with their mother, albeit in a shared custody arrangement.
Further, the appellant’s submissions overlook the fact that Ms Bedford is working in employment which requires her to wear a uniform. It would hardly be possible that her employer would continue to employ her if she did not present in a tidy state, even if she did look unkempt occasionally. There was no evidence to support the speculative submission that Ms Bedford’s weight might be at or below a healthy level.
The evidence did not suggest that Ms Bedford should be visited 2-3 times per week to ensure a minimum level of hygiene and nutrition, which are descriptors for a class 3 assessment. Keeping in mind the pre-eminence of the clinical observations in this field of medical science, we are not persuaded that the matters raised are any more than a difference of opinion that reasonable minds could differ about.

Social functioning

Table 11.4 provides for a class 2:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The class 3 descriptors are:
“Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The MA assessed a class 2 value, saying in the PIRS Table:
“She has maintained good relationships with her daughters, father, and ex-husband; she has made one new friend at Terrigal. She has disengaged from her previous friendship group and has no communication with them.”
We read with interest Ms Bedford’s submission that a class 3 value should have been ascribed to the social functioning category because the MA did not record a history of any pre-injury friendships that had been maintained. We were invited to draw an inference that Ms Bedford had accordingly not maintained any such friendships, which is not necessary as the MA in fact recorded that there was no communication with them.
In any event, the argument that class 2 was inappropriate because it required a loss of “some” friendships is rejected. Firstly, as we have indicated, the descriptors are not criteria. They are no more than examples to be considered to which an MA can apply as much weight as he deems fit within the limits of his discretion, which have discussed above.
Secondly, the descriptor does not require that the friendships all relate to a claimant’s pre-injury history. They apply to “existing” relationships. We note Ms Bedford’s strenuous attempts to distinguish between a “friendship” and people who visit each other’s homes but do not go to social venues. In the context of the MA’s discretion, such submission is misconceived. Indeed, Ms Bedford had to concede the point whilst arguing that she had no friends, to acknowledge “(with the exception of a friendliness or neighbourliness with her next door neighbour)”. Her submission that she had not been able to form a longer-term relationship again was accompanied by a concession, again in parenthesis, “(subject to comments above)”.
We note that a class 3 assessment speaks of previously established relationships being severely strained, separation and domestic violence being evidenced, and the children being cared for elsewhere. None of these examples were apposite in Ms Bedford’s case. Her children resided with her on a shared custody arrangement, and her ex-husband had proved to be the source of “massive support”. The assessment in this category was open to the MA.

Employability

Table 11.6 provides for class 3 descriptors:
“Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”
Class 4 is described as:
“Severe impairment: cannot work more than one or two days day a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
The MA stated in his PIRS Table:
“She works in a less demanding and responsible role as a food and beverage café assistant, usually working 20-24 hours a week. Sometimes, she copes less well and reduces her hours slightly.”
The appellant did not specifically plead that a class 4 should have been selected by the MA, but it is clear that Ms Bedford was dissatisfied with her class 3 assessment. The respondent noted the appellant’s allegation that the MA had recorded an incomplete and inaccurate history regarding Ms Bedford’s employment, but responded by submitting that the MA had reviewed all the material and used his clinical expertise on the day of the assessment to assess a class 3 value, which was consistent with Dr Canaris’ opinion.
This response is understandable, as Ms Bedford identified the apparent error by referring to “the materials filed”. They showed, the appellant declared, “multiple attempts to return to work with a range of employees” . Just what these materials were, and where they were located within the evidence was not revealed.
The appellant said there were “multiple post injury employers” for whom Ms Bedford had been “unable to consistently perform her rostered hours…” There were “multiple absences” and her work capacity had been downgraded. This was said to be a relevant history of probative value which had not been recorded by the MA. Again, no attempt was made to identify this evidence.
In any event, the appellant relied on the MA’s finding that Ms Bedford worked between 20-24 hours a week, although when she was less well she might drop down to 15-16 hours. The appellant did not suggest that the MA had erred in making that finding or that Ms Bedford’s position had changed. A perusal of the above descriptors for class 3 shows that
Ms Bedford’s hours were usually above those indicated (less than 20) but sometimes were within the range.
Criticism was made that the MA had indicated there was only one post-injury employer. The appellant said in her statement that she obtained casual work at Waves Hospitality at Avoca Beach from 5 December 2020, and that she subsequently obtained employment in aged care on a part time basis with varied hours. She then obtained work with Compass Group as a food and beverage attendant at Gosford Hospital working in the Newcastle University complex and has remained employed there since October 2021. She said her work was then 30 hours per week, which she struggled with. She said she was certified as fit for work four days per week , 6-6.5 hours per day. Although Ms Bedford said she struggled, notwithstanding that it required less skill.[20]
[20] Appeal papers p 41.
Ms Bedford’s statement confirmed the history taken by the MA in one significant respect – that her hours were currently as he recorded. Ms Bedford was certified as fit by her general practitioner for over 20 hours per week. Whether she has had one employer or three since she ceased with the employer, she has proven herself able to work within the class 3 descriptors, and has continued to do so with her latest employer for nearly a year. This ground is also rejected.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 September 2022 should be confirmed.

[2023] NSWPICMP 37

6 February 2023